Shahed Kayes

Shahed Kayes is a teacher, poet and human rights activist.

A good governing system can ensure Rule of Law, Human Rights and Democracy in a country. It’s not a person; it’s the institutions those are responsible to run a state properly. Unfortunately our political parties, who were in power all the years after independence of Bangladesh highly politicized and almost, destroyed all the state institutions.

Universal human rights norms and state obligations to protect and promote human rights and democracy are unachievable without suitably functioning domestic justice institutions. This is because only good justice frameworks can breathe life into human rights guarantees.

The police, prosecution and the judiciary are vital tools in human rights work. These institutions form the central architecture of the machinery tasked with two important and inseparable roles: Being a deterrent to human rights violations and when violations occur to be the organ that can prescribe and provide remedies.

The criminal justice system of Bangladesh is, in fact, useless. There are several reasons behind this uselessness. The main reason behind this problem is political influence on the judiciary. This

influence is a constant presence everywhere, in a large scale. The way the ruling political party or groups use their influence on the judiciary damages the entire system.

Besides, the judiciary itself has not achieved the required mindset, competence, and commitment

for administering justice, which an independent institution must have.

Let me share my personal experience. I will explain here the challenges we faced to fight for our rights in a small island (Locally called ‘Char’) surrounded by one of the biggest river in Bangladesh ‘Meghna’. I would like to explain the whole country’s Human Rights, Democracy and State-run Institutions’ situation by explaining the situation of a small island, and the struggle we had gone through.

What fellow activists and I, back in Mayadip island in Bangladesh have gone through can prove the incompetence and uselessness of the criminal justice system in the country.

Firstly, five cases were fabricated against me and my fellow activists. The activists and inhabitants of Mayadip and I have been implicated in these fabricated cases in 2010, 2012, and 2013. These cases were deliberately filed in two different jurisdictions – the Sonargaon police station in Narayanganj district and with the Meghna police station in Comilla district. The complainants were thugs of the companies responsible for illegal sand mining at Mayadip Island.

The police have filed distorted investigation reports against us in all five fabricated cases, due to

political pressure and bribery from the thugs of the sand mining companies (Locally called Balu-Shontrashi or Balu-Mafia).

Secondly, the victims and inhabitants of Mayadip island who had come under physical attack for

protesting against the illegal sand mining and I have filed two cases, in person, against the

perpetrators. The inhabitants of Mayadip filed two more cases against them. The police investigated these four cases and submitted weakened reports [known as ‘charge sheet’ in Bangladesh] to the Courts, widening the scope for the perpetrators to walk free. The police have done this due to the same reasons of political pressure and corruption. So, we have been compelled to be part of nine cases for no reason; this may help us interpret the character of the state apparatus of Bangladesh.

Thirdly, apart from these nine cases, the then Assistant Commissioner (AC) of Land, Sonargaon,

Narayanganj, filed a case against the same group of perpetrators, against whom the inhabitants of

Mayadip have been fighting, for illegal sand-mining. He filed this case for illegal extraction of sand without governmental permission and abducting him and me in the Meghna river. This case has put on ice now. After filing this case, the AC-Land Mr. Km Al-Amin was transferred away from Sonargaon; this is assumed to be punishment for him.

The behavior of the institutions – obliged to uphold the rule of law – in these nine cases, and the

behaviour of the civil and police administrations as well as the political entities, have established

that the criminal justice system is meant to be useless. Instead, the state apparatus remains a façade so that undeserving wealth can be earned by the use and abuse of political power in collaboration with criminal justice institutions.

The harassment that I and my fellow activists faced during the course of the litigations we have been party to

I should say a little bit about the locations of the courts where we had to appear for the hearings in the five fabricated cases against us. Although the Comilla district is just on the opposite bank of the Meghna River, it requires a long time, lot of money, and trouble to reach there from Mayadip, due to the complicated infrastructure, transportation system, and security risk. It takes at least five hours to reach Comilla district headquarters from Mayadip Island. This island is virtually cut-off from the basic infrastructures that the people deserve. There is no road connection with the main towns of the country from Mayadip. Around twelve thousand ultra poor people do not have any basic facilities such as the healthcare, education, drinking water supply, employment opportunity, or public transport.

For appearing before the court in Narayanganj, first one has to walk for about a mile. Then, by private boat may take to the Sonargaon sub-district town. From Sonargaon, a rickshaw or a threewheeler auto rickshaw is required to reach the Dhaka-Chittagong Highway. From there, by bus or other available transport, one can reach Narayanganj district. It takes at least around two and a half hours to reach the court in Narayanganj.

If someone is supposed to appear before the court in Comilla district, the person has to waste double the energy and time required for traveling to the native district headquarter in Narayanganj. By the time one reaches Comilla from Mayadip, the person will be exhausted. The expenditure of money in this case is many times more than that for Narayanganj. Because, the litigants have to arrive in Comilla at least a day earlier, as it is impossible to find any transport in the early mornings to reach the Court, which starts at 9 a.m. The litigants need to consult with the lawyers before court proceedings start in the morning. Often, lawyers don’t have time to consult with their clients in the morning, i.e. prior to the hearings in court.

In every case, around 15 or more activists are accused. Now, let’s imagine that all these people pay for their round trip travel, hotel accommodation for at least two nights in Comilla, buy meals, pay for the lawyers, and the corrupt court staff. It’s a huge amount of money for such poor people, who live basically hand to mouth.

Let’s look at the livelihood of these activists who have been facing fabricated cases. In order to

appear before the courts in Comilla district, the defendants have to spend at least three days. All of them are mostly day-labourers or fishermen. The fishermen don’t have their own boats and nets. The owners of boats and nets employ them on daily basis for fishing in the river. They earn meager amount of money every day for maintaining their families amidst extreme poverty. When these sole-breadwinners fail to work for three days, their families, including the children, literally starve on those days. Moreover, they have to borrow money from others to meet the litigation costs. Those who know the context of Bangladesh know very well that the poorest of the poor face unimaginable difficulty and humiliation when they have to borrow money. If the appearance before the court is scheduled more frequently, these poor victims will face multiple forms of problems in their socioeconomic life.

In my case, I had to sell certain piece of my ancestors’ land, which I got as my share from my father, and borrow money from micro-credit companies to manage the litigation costs. I also had to support some of these victims of fabricated cases.

What is wrong with the criminal justice system?

For a short answer to this question, one should rather ask what is not wrong in Bangladesh’s

criminal justice system.

The cases lodged against me and fellow activists in 2010 are still pending. The investigations have not yet been completed. The police are top to bottom corrupt. They get bribes from the thugs of the illegal sand mining companies. They keep the investigation pending while we have to appear before the court for years. There can be dozens of witnesses who are ready to tell the truth although their life will be at risk for asserting the truth. But, the police investigators don’t go to the witnesses. What the police are doing is keeping enough room for the perpetrators to walk free. With such a criminal investigation system, justice is impossible. The judicial system has collapsed in Bangladesh.

It has been six years now. We are forced to waste our energy, time, and resources. The perpetrators are at large. They have attacked my colleagues and I on several occasions. Had this case been promptly and credibly investigated by the police the situation could have been opposite.

The Magistrates could have also held the police investigators accountable – as far as I have learned about certain legal provisions. But, they don’t do it. They don’t bother about the manifold problems the people face due to inordinate delays in the adjudication of criminal cases. The Magistrates of our country do not act like judicial officers. Rather, they appear to be ‘service-holders’, who just come to the office for sitting on certain chairs to rubber stamp few documents in a ritualistic manner and go home. By following this routine they get paid by the state, with taxpayer money. The cases continue for years, and the litigants, especially those who are the victims of fabricated cases, are ruined.

The problems centered on the Magistracy, Police and the Higher Judiciary

We have experience with the higher judiciary too. I filed a public interest litigation, writ petition no. 3325 of 2012, with the High Court Division of the Supreme Court of Bangladesh. On behalf of the people of Mayadip, I challenged the illegal sand mining in Meghna River, adjacent to Mayadip island, which was eroding as a result of sand extraction from the island. By that time, one tenth of Mayadip Island had eroded into the Meghna River due to constant extraction of sand. A High Court Division Bench ordered the relevant high ranking administrative and police authorities to stop sand mining in the said area. Despite the High Court stay order, illegal sand mining continues; the police and civil administration are spectators. Reality proves that a High Court order can be ignored and undermined by those who are constitutionally obliged to implement the orders of the higher judiciary.

Why has the High Court’s order been ignored and undermined?

Politics and corruption are above the order of the High Court. Let me share one of our experiences with the court. We went to the court in Comilla on a specific date of hearing. Fourteen of our fellow activists were defendants in a case [First Information Report No. 3 of Meghna police station,Comilla, dated 10 September 2012]. We were on bail. Everyone of us was continuously appearing before the court in person while on bail. On one occasion there was a hartal [general strike] called by the opposition political parties. The defendants could not reach Comilla for hearing on the hartal day, amidst political violence and the unavailability of public transport. On the following date, when the defendants appeared before the court the lawyers explained the situation to the Magistrate and told him that in a hartal people cannot afford public transport to travel from Mayadip to Comilla Court, which requires more than five hours of travel via different modes. The Chief Judicial Magistrate (CJM) of Comilla, while sustaining the bail of thirteen defendants, cancelled the bail of one key activist, Mr. Mohammad Jilani.

Once Jilani was detained, we observed how the thugs of the sand mining companies celebrated the court’s decision. Our lawyers could not understand the legality of detaining Jilani. According to the lawyers, in similar cases in the past, the Court normally considers the reality and extends the bails of the accused, even in serious offences. All of us were trying to understand what was wrong that put Jilani behind the bars again.

We found that one of our friends, a prominent person based in Comilla city, had personal friendship with the CJM of Comilla district. Our friend heard our side of the story and decided to check with the CJM. The following day, we learned that the CJM expressed his helplessness to our friend. The CJM told our (and his) friend that he received a telephone call from a parliamentarian of the ruling political party. This parliamentarian also happens to be a retired Major General of the Bangladesh Army. The parliamentarian asked the CJM to detain the key activist. The CJM had claimed that he had no option but to entertain the request of the ruling party parliamentarian. We had to approach to the Sessions Court to secure bail for Jilani, who stayed in prison for 11 days. The courts, following political intervention, can deny the right to liberty of a victim of a fabricated case. We understood the type of ‘judicial independence’ we have in Bangladesh. This is why the High Court’s order was undermined.

We should talk about the independence of the judiciary. At the same time, we need to see whether the judiciary is free from political interference or not.

The government role in the process of the harassments that we have faced

The government’s role has been ridiculous and shameless. The issue of illegal sand mining and its subsequent harmful impact in terms of the inhabitants’ right to life, livelihood, and shelter has

already become an important issue at the international level.

Let me tell you how we became victims of these cases. When the inhabitants of Mayadip protested against the sand-mining companies, they were intimidated directly by the goons of the sand-miners, who kept the islanders confined in the island in 2010. Musclemen of the miners indiscriminately attacked anyone who traveled out of the locality. The fishermen were prevented from fishing in the river. Their boats were damaged; their nets were snatched away. On 9 December 2010, the inhabitants of Mayadip resisted sand mining activities and captured four musclemen of the mining companies. Immediately, another gang linked to the companies threatened the villagers with guns and forced the released of the four detained men. From that day, for the following two weeks, gunmen prowled around the Mayadip Island. The thugs manned the entire island. Nobody was able to go out to work in those days. The thugs said openly and clearly to the islanders, “If you attempt to prevent us from sand mining, we will never allow you to catch fish from the river.”

The sand miners threatened the islanders when the latter did not agree to give up their protest

against the illegal mining. When constant threats did not work, the mining companies fabricated

cases, one after another, by bribing the police and abusing their political power through local

parliamentarians in two different districts. As the islanders continued fighting the litigations, and

appeared to be uncompromising, the mining companies tempted key leaders of the movement by

offering money on a daily basis. For example, as the main organizer of the movement and Chief

Advisor of the ‘Illegal Sand Extraction Prevention Committee at Myadip-Nunertek islands’ the

companies offered me 10,000 Taka per day, which is approximately $ USD 130 in those days, on

condition of stopping the movement. When I rejected their offer, then they attempted to assassinate me on 25 July 2013. My fellow activists faced the same reality.

The Asian Human Rights Commission (AHRC) sent three Urgent Appeals on these matters. The

AHRC also wrote to the UN Special Rapporteurs seeking their intervention. The Special Rapporteur on Adequate Housing communicated with the Government of Bangladesh through diplomatic channels. The Office of the Prime Minister of Bangladesh ordered the Deputy Commissioner of Narayanganj to inquire into the case involving illegal sand mining and into relevant issues of right to life, livelihoods, and shelter, as raised by the UN expert. There was an investigation conducted in April 2012 following the communication of the UN expert. But, the result is zero.

Moreover, the thugs of the sand-mining companies have threatened me with death after this investigation. In 25 July 2013, they abducted me and attempted to assassinate me. I narrowly survived due to some of my best friends’ prompt interventions, which forced the Sonargaon police to rescue me from my assailants.

The situation of our cases and the subsequent reality now

We have not yet been relieved from these cases. They are still pending. The police keep their option open for bribery by keeping the investigation pending. The sand mining companies are extracting sand from Mayadip. The companies continue this illegal extraction despite the Narayanganj district administration not having given permission to any company for extracting sand or dredging the Meghna River at the said location since the High Court’s stay order. In fact, the Comilla district has given permission to these companies for dredging within their jurisdiction. Instead of dredging in the Comilla district’s jurisdiction, the sand-mining companies have been stealing sand from the Mayadip island. The reason behind this is that dredging in the River requires comparatively bigger investment in terms of logistics and human resources. And, what the companies have been doing is using administrative permission to steal sand from a location beyond their jurisdiction. They don’t help the administration by dredging the river; they only make money. They obtained permission for the so-called dredging through the ruling party’s political influence due to the invisible partnerships of the ruling party parliamentarians. The parliamentarians of both Narayanganj and Comilla districts are directly and indirectly involved in the money making process of stealing sand. The administration and law-enforcement agencies know this truth very well. But, all the institutions of Bangladesh are meant to be the associate forces or tools that let the illegality of the powerful prevail. The entire administrative system is highly corrupted. They get their share from the illegal money-mongers, like the sand-mining companies. The public officials, the police, and other agencies get their individual and collective ‘rewards’ for ‘serving’ their political masters by not taking any lawful action, which they are, obliged to do.

On one hand, the politicians, the bureaucrats, members of law-enforcement agencies, and a group of thugs are becoming rich via theft. On the other hand, the majority of the poor taxpayers are forced to the verge of extinction, victim to the ongoing insane race of acquiring undeserved wealth practiced by the few.

The major Human Rights violations in the country

Bangladesh’s return to constitutional democracy provided some optimism for a gradual improvement in its rather dismal human rights record, yet significant change has not taken place. Extrajudicial killings by security forces, deaths in police custody, harassment of political opponents, arbitrary arrest and detention, Minorities and Indigenous peoples rights violations, Writers, Free thinkers, Bloggers killings by the religious extremist groups, in this issue Government’s mysterious silence and the use of the lower judiciary to serve partisan interests of the ruling party all continue, and these are the major human rights violations in the country. These human rights violations are taking place in the country because of the Government’s inaction, corruption and the absence of Rule of Law and Democracy in Bangladesh.

The fundamental rights in the Constitution of Bangladesh

The fundamental rights of the people or the independence of the judiciary only exist on papers as

far as Bangladesh is concerned. The constitution is violated everyday by powerful people, and even by the head of government. The laws are useless as far as the poor people’s everyday life and livelihood are concerned. The laws also prove to be useless when the people having allegiance with ruling politicians and state agents abuse their power for undue benefit. Thus, there is no consistency between the rights and remedies written in the books of law and the real life of the ordinary people. The so-called constitutional guarantees of fundamental rights are meaningless.

We live in a state where numerous people starve every day, often for days. The state, which has

obligation to ensure the rights of the people, ignores its responsibility. Nobody checks how many

people are starving and how these starving-people live; nobody cares about their life-long unemployment. The majority of the population who are poor in terms of wealth, the dalits, and

ethnic minorities, cannot afford their right to education. Their healthcare facilities are non-existent. Minimum dignity as human beings does not exist for them. These people are deprived every right they deserve, which the state is mandated to provide them. It is the state which destroys people’s life and future by abusing the criminal justice system and other state apparatuses.

What is wrong in Bangladesh?

The police picked one of my neighbours. He was a young man. The police tortured him to death in custody. Nothing happened to the police officers responsible for this crime. In the rivers adjacent to Narayanganj, dead bodies are found floating one after another. There have been specific allegations and proof that the law-enforcement agencies abduct and kill people for money. And, later the dead bodies are dumped in the rivers for the purpose of disappearing the bodies. Nothing happens to the perpetrators, other than certain ‘eye-wash’ interventions. When such things happen in a country recurrently it is clear that the rule of law does not exist in that particular country. The people also understand very well that the state is investing its utmost efforts to uphold lawlessness.

The Mayadip sand mining case involves every branch of the state – the executive, the legislature,

and the judiciary. The High Court order became useless in stopping the illegal actions of the sand

mining companies. Why? Because, local parliamentarians are involved in this money making

process. The country’s Foreign Ministry and the Prime Minister’s office have been involved due to the intervention of the UN Special Rapporteur. If the state apparatus had minimum concern about the image of Bangladesh, the institutions should have been allowed to function to the extent that they could tell the truth to the UN expert by taking fair action in the matter. In fact, the state’s priority is to allow the ruling party’s thugs to earn undeserved money by maintaining lawlessness across the country. Good governance, democracy, and the rule of law are pointless rhetoric or jargon to the ruling elites and bureaucrats. They use these terms to keep up their lawless actions at the cost of immeasurable public plight. That’s where the things are frustratingly wrong in Bangladesh.

What should be done in these circumstances?

First, we need to admit that we have certain self-created problems. We have a rotten polarised

political culture, which is inseparable from violence, hatred, and vindictiveness. We have entrenched corruption in our criminal justice system. We have a culture of impunity to protect the perpetrators of fundamental rights violations. The politicians, the civil, and military bureaucrats of our country have endless, and uncontrollable greed for public assets. These are the worse evils in Bangladesh. Having these evils is enough to ruin a nation. The unity and combination of these evils offer us one of the worst policing systems, based on torture, coercion, and extortion. These evils offer us a puppet judiciary. We are offered an anti-people public administration, which deprives the majority of citizens, by all means, for protecting interests of rulers.

We don’t have any guiding principles to run the state, in fact. Norms and values hardly have any

space, at least as it is reflected throughout the actions of the state itself. That’s why extrajudicial

There should be massive reforms of the entire system: the policing, the judiciary, the civil administration, and the military; all institutions require thorough reforms immediately.

We have to wake up before it is too late. Everyone needs to see the things without any fascination or unconditional trust and inclination to any of these evil forces and practices. We need to sharply identify the rooted problems that ruin our existence as human being and citizens of Bangladesh. If we fail to accept the truth – even the ugliest ones – and don’t want to change to a system every civilised society deserves, we cannot move forward.

There is no one-word solution to the countless problems in Bangladesh. I think, we should start

listening to the people. The ordinary people know better than anybody else about how they suffer in their everyday life. There should be a mass hearing from the people across the country. The untold and unrevealed stories of people’s sufferings should be heard and comprehended. The state’s constitution, principles, and policies have to be developed on the basis of the needs of the people in general. Our priority must be the opinion of the people. What type of politics do the people want? What type of policing system do they want? What type of judges and judicial system do they need? What sort of attitudes and behaviour do the people expect from the state and its institutions? Do the people want to engage the military in a policing job or not? All of these issues should be determined as per the requirements of the ordinary people and should comply with the universal normative principles.

"I am only one, but still I am one. I cannot do everything, but still I can do something; And because I cannot do everything I will not refuse to do the something that I can do." - Helen Keller. Shahed Kayes is a teacher, poet and human rights activist. Shahed initiated a movement for the education of non- privileged children of river-gipsy, cobbler, fisher-folk, dalit, and indigenous communities in rural Bangladesh. He has continued to organize the ‘Save Mayadip’ movement to aid twelve thousand islanders fighting against illegal sand mining on the Meghna River. He serves as Chief Advisor to the ‘Illegal Sand Extraction Prevention Committee at Myadip-Nunertek islands’.